The long road in the Jussie Smollett case finally reached trial Monday in Chicago, more than two years after police first alleged the actor lied about being the victim of a hate crime and wrongfully diverted weeks of investigative manpower.
The former “Empire” actor, who is Black and gay, has repeatedly denied staging an attack on himself, insisting two men struck him, yelled anti-gay and racist remarks, put a noose around his neck and poured bleach on him on a cold January 2019 night in the Windy City.
Authorities have argued evidence, including texts and accounts from two Smollett acquaintances, point to Smollett paying the pair to rough him up, so he could attract publicity and a career boost – a narrative Smollett has denied.
A 12-person jury was selected in just over six hours Monday for the trial, in which Smollett, 39, is charged with six counts of disorderly conduct on suspicion of making false reports to police. He has pleaded not guilty.
Opening statements began after the jury was seated, with prosecutors telling jurors the actor was an accomplice to his own “fake hate crime,” while defense attorneys claimed Smollett was a “victim.”
Special Prosecutor Daniel Webb claimed in opening statements that Smollett devised a “secret plan” in January 2019 with brothers Abimbola and Olabinjo Osundairo to make it appear a hate crime occurred against him by supporters of Donald Trump and to make producers of his former TV show take more seriously an alleged “hate” letter he received.
Webb claimed there were two main allegations they must prove: that Smollett knowingly reported to members of the Chicago Police Department that an actual hate crime occurred, and that he knew it wasn’t a hate crime, but a “fake hate crime,” as Webb repeated.
The prosecutor prepared the jury for upcoming testimony from either of the Osundairo brothers, who he said will claim they carried out their plan, and all agreed they would punch Smollett just enough to make the attack look real.
“They agreed they should bruise him a little bit,” Webb said. The special prosecutor spoke for a little over an hour, and all the while Jussie Smollett sat and watched intently, surrounded by his attorneys.
Defense counsel Nenye Uche opened directly to the jury, saying there was an “elephant” in the courtroom, and “we shall name this elephant: assumptions.”
“Jussie Smollett is a victim – it’s a shame I have to say it,” said Uche. “This rush to judgment has destroyed Jussie’s life.”
Uche painted a different picture of the Osundairos, claiming the brothers did not see Smollett as a friend, but instead as a “mark” or “target.”
Smollett is “cloaked” with the presumption of innocence, Uche said, adding he has no doubt the jury will “come to the same conclusion we came to – not guilty.”
Once the defense finished, Smollett walked over to his mother and gave her a kiss and a long hug. There were 11 people seated in the family section for Smollett throughout the duration of opening statements.
Fourteen jurors were seated as part of the trial proceedings: six men, six women and two female alternates.
Disorderly conduct charges
Smollett faces six-counts of felony disorderly conduct which the special prosecutor says stem from the actor making four separate alleged false reports to Chicago Police Department officers related to his false claims that he was the victim of a hate crime, while “knowing that he was not the victim of a crime.”
He has pleaded not guilty. As he exited the courthouse for the evening, Smollett told the media, “enjoy your night.”
A disorderly conduct charge for a false crime report is a Class 4 felony in Illinois, punishable by up to three years in prison and a $25,000 fine. A judge would determine whether convictions on multiple counts would yield sentences to run concurrently or consecutively.
It once looked like this case wasn’t going to trial. The Cook County State’s Attorney’s Office unexpectedly dropped Smollett’s first set of charges – also disorderly conduct – in March 2019 after he performed community service and agreed to forfeit the $10,000 bond he paid.
But the decision set off debate over whether Smollett had received preferential treatment, leading a judge to appoint a special prosecutor, former US Attorney Webb, to look into it in August 2019.
Webb served as a special prosecutor in the Iran-Contra Affair and is a former US attorney for the Northern District of Illinois.
The new investigation led to a second grand jury, which in February 2020 indicted Smollett on the current charges. Smollett’s attorneys tried to dismiss the case on grounds this was double jeopardy – but Cook County Judge James Linn rejected this, because Smollett hadn’t been tried.
The trial begins to wrap a case that captivated a nation for weeks in pre-pandemic times, and has been anything but a boon to Smollett’s acting career.
After friends and fans and Hollywood rallied around Smollett, horrified that anyone would so brazenly attack him, support shrank and many turned on him when police alleged he staged it. Smollett’s character was written out of the Fox drama “Empire,” and though he has since directed and produced a film, he’s yet to appear in another TV or film acting role.
The staging allegations also led some to lament it might unfairly cast doubt on future victims of hate crimes.
How the case unfolded
Smollett told police two men attacked him outside, near his Chicago apartment, around 2 a.m. on January 29, 2019, as he was walking back from a Subway sandwich shop, authorities said.
Smollett, who played a gay character on “Empire,” said the attackers yelled, “‘Empire’ fa***t’” and “’Empire’ n***er,” while striking him, police said. The incident ended with a noose around his neck and bleach poured on him, police said.
The actor said one of the men shouted, “This is MAGA country,” a reference to then-President Donald Trump’s “Make America Great Again” slogan, according to police.
Police initially investigated the case as a possible hate crime. Chicago police body camera footage shows officers speaking with Smollett that day: As officers enter his apartment, he’s seen wearing a sweater with a white rope tied in a noose around his neck.
Police reviewed video from numerous city and private sector surveillance cameras. None captured the alleged attack itself – but investigators focused on footage of two people in the area at the time of the reported incident.
Tracing their steps in reverse, investigators tracked them to a cab ride, and then a rideshare car. A check on the rideshare order ultimately led police to identify the men as the Osundairo brothers, authorities said.
The brothers flew to Nigeria hours after the alleged attack. When they flew back to Chicago on February 13, 2019, investigators met them at customs when they returned, authorities said.
After police detained and interviewed the Osundairo brothers, authorities said they were getting a different idea about the case. On February 21, 2019, Chicago’s then-police superintendent Eddie Johnson announced Smollett was being charged, saying Smollett knew the men and paid them to stage the attack.
Johnson laid out a series of allegations, including, days before the assault, Smollett first “attempted to gain attention by sending a false letter” to the “Empire” set “that relied on racial, homophobic and political language.” It contained white powder and a drawing of a “stick figure hanging from a tree,” police have said.
According to prosecutors that month, Smollett told one of the brothers he was disappointed in the “Empire” team’s reaction to the letter.
So, Smollett paid the brothers $3,500 to attack him, to take “advantage of the pain and anger of racism to promote his career,” Johnson alleged when announcing the initial charges.
Investigators obtained a check Smollett used to pay Abimbola Osundairo, prosecutors said at the time.
To bolster their case, authorities cited text messages and records of phone calls between the parties. The alleged plot’s electronic trail dated to January 25, 2019, when Smollett texted Abimbola Osundairo and said, “Might need your help on the low. You around to talk face to face?” prosecutors alleged.
Smollett took the brothers to near the site of the purported attack, and they rehearsed it, before Smollett gave the brothers a $100 bill to buy clothing and rope for a noose, prosecutors alleged.
Phone records indicated Smollett talked to the brothers about an hour before the alleged attack, an hour afterward, and after they left the country for Nigeria, authorities said.
Smollett had wanted to draw attention to himself partly he was “dissatisfied with his salary,” Johnson alleged.
In March 2019, Smollett attorney Patricia Brown Holmes said Smollett did pay the brothers, but only for “nutrition and training.”
“They were his trainers,” she said.
Smollett’s attorneys always maintained he was innocent. That same month the office of Cook County State’s Attorney Kim Foxx suddenly dropped all charges.
The case’s lead prosecutor at the time, Joseph Magats, said his team considered Smollett’s volunteer service in the community and willingness to forfeit his $10,000 bond. He also noted Smollett had no prior felonies and wasn’t a danger to the community – but he told CNN affiliate WLS it did not mean Smollett was exonerated.
“We believe he did what he was charged with doing,” Magats told WLS.
The day charges were dropped, Smollett’s attorneys released a statement saying the actor was “a victim who was vilified and made to appear as a perpetrator as a result of false and inappropriate remarks made to the public, causing an inappropriate rush to judgment.”
“This entire situation is a reminder that there should never be an attempt to prove a case in the court of public opinion,” the statement reads. “That is wrong. It is a reminder that a victim, in this case Jussie, deserves dignity and respect.”
Johnson and Chicago’s then-mayor, Rahm Emanuel, expressed outrage over the dropped charges.
“This is without a doubt a whitewash of justice and sends a clear message that if you’re in a position of influence and power, you’ll get treated one way. Other people will be treated another way,” Emanuel said in March 2019.
Latest set of charges filed after special prosecutor steps in
A retired Illinois appellate court judge eventually initiated a petition to appoint a special prosecutor to check how the Cook County prosecutors handled the case, and to decide whether Smollett should still be prosecuted.
A Chicago judge appointed Webb as special prosecutor in August 2019. Webb took the case to a second grand jury, which indicted Smollett with the latest charges in February 2020.
At the time, Smollett attorney Tina Glandian said the special prosecutor “has not found any evidence of wrongdoing whatsoever related to the dismissal of the (first set of) charges against Mr. Smollett.”
“Rather, the charges were appropriately dismissed the first time because they were not supported by the evidence,” Glandian said.
Smollett pleaded not guilty two weeks later.
Webb said the second grand jury’s investigation “revealed that Jussie Smollett planned and participated in a staged hate crime attack, and thereafter made numerous false statements to Chicago Police Department officers on multiple occasions, reporting a heinous hate crime that he, in fact, knew had not occurred.”
He decided to prosecute Smollett for several reasons, “including the extensive nature of Mr. Smollett’s false police reports, and the resources expended by the Chicago Police Department to investigate these false reports,” Webb said in a prepared statement in February 2020.
Gloria Schmidt Rodriguez, who represented the Osundairo brothers, has said the brothers were sorry for their role, and would “continue to cooperate with” a process of helping the public know the truth.
Webb’s office also released a report in August 2020 saying there was evidence county prosecutors had abused their discretion in dropping Smollett’s first charges, but also there was no evidence supporting criminal charges against them.
Foxx’s office released a statement that month saying Webb’s findings put “to rest any implications of outside influence or criminal activity on the part of the Cook County State’s Attorney’s Office.” The statement also said Foxx’s office categorically rejected Webb’s “characterizations of its exercises of prosecutorial discretion and private or public statements as ‘abuses of discretion.’ “
CNN’s Brad Parks, Ryan Young, Madeline Holcombe, Holly Yan and Eliott C. McLaughlin contributed to this report.